The Government Hiding Children From Fathers: Ohio's "Safe Haven" Law and the Separation of Powers Doctrine - a

Print
Published Date Written by Erik L. Smith

 

 

The Separation of Powers Doctrine in Ohio

The Common Pleas courts, including the juvenile court, "possess all powers necessary to secure and safeguard the free and untrammeled exercise of their judicial functions and cannot be directed, controlled or impeded therein by other branches of government." [14]Judicial functions include regulating and supervising court procedure. [15]The separation of powers doctrine distinguishes between jurisdiction and inherent power. [16]Jurisdiction refers to the court's authority as conferred by the constitution or the legislature, such as defining what cases courts may hear based on the subject matter, the parties, or whether the case is an appeal or an original action. Inherent power refers to the decisions and tasks the court deems necessary to exercise its jurisdiction properly and efficiently. [17]Those inherent powers do not depend on constitutional grant or legislative enactment. Rather: "[T]he power to maintain order, to secure the attendance of witnesses to the end that the rights of parties may be ascertained, and to enforce process to the end that effect may be given to judgments, must inhere in every court or the purpose of its creation fails. Without such power no other could be exercised." [18]

 

Court rules dictate how the judiciary will exercise its inherent power to regulate procedure. Section 5(B), Article IV of the Ohio Constitution vests the authority to enact those rules in the Supreme Court:

 

"The supreme court shall prescribe rules governing practice and procedure in all courts of the state, which rules shall not abridge, enlarge, or modify any substantive right....All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect."

 

The court rules thus control over "[later] enacted inconsistent statutes purporting to govern procedural matters." [19]Accordingly, a statute that interferes with a court rule, or with a matter normally reserved for the courts to determine, violates the separation of powers doctrine in Ohio. That holds regardless of the statute's rationale.

 

For example, in State ex rel. Butler v. Demis,20420 N.E.2d 116 (Ohio 1981). the Ohio Supreme Court upheld a judge's refusal to appoint an indigent mother's chosen attorney in a permanent custody proceeding. The statute let indigent parents choose their own counsel. The court could appoint the lawyer selected by the parent, or appoint counsel if the parent so requested. The mother claimed the court had to appoint the lawyer she chose. The court held that because the statute usurped judicial power it was ineffective no matter its intent:

 

"The power to appoint counsel reposes in the courts, however, not the General Assembly or in the parties appearing before the court. The power being inherent in the judiciary, the General Assembly has no power to take it therefrom and place it in the hands of the parties." [20]

14.
State, ex rel. Johnston, v. Taulbee, 423 N.E.2d 80 (Ohio 1981); Zangerle v. Court of Common Pleas, 46 N.E.2d 865 (Ohio 1943). 
15.
State ex rel. Butler, v. Demis, 420 N.E.2d 116, 119. 
16.
Hale v. State 45 N.E. 199, 200 (Ohio 1896). 
17.
Id. 
18.
Hale at 200, see note 17. 
19.
Rockey v. 84 Lumber Co., 611 N.E.2d 789 (Ohio 1993). 
20.
Id. at 121. 

The Ohio Putative Father Registry–the WHAT?

I am a single man. Yet I had been in Ohio for over a year before hearing of the Ohio Putative Father Registry, and then only in a Probate Law class. The professor was covering how a child could be adopted without the birth father's consent. "ORC 3701.061: A man who has sexual intercourse with a woman is on notice that if a child is born as a result and the man is the putative father, the child may be adopted without his consent pursuant to division (B) of section 3107 of the Revised Code." That section required the man sign the Putative Father Registry within thirty days after the birth to get notice of the adoption.

 

Ohio Putative Father Registry: The Basics

Unwed fathers are entitled to notice of petitions to adopt their biological children. Yet many fathers lose this right by not registering timely with the Ohio putative father registry (PFR).1R.C. 3107.062. Because adoptions are probate proceedings, lawyers practicing juvenile, domestic relations, or traditional probate law may not understand how the Ohio PFR applies.  At initial consultations then, attorneys may omit counseling fathers about the registry and refer them to attorneys with more specialized experience. But the strict registration deadline, and often unknown deadline date, demand that the father register immediately. Thus the attorney should consider counseling the client about the PFR and help him register that day before referring him. This article gives the information needed to do that.

Preventing Your Infant Child From Being Adopted Without Your Consent

Summary

Consult an adoption law or family law attorney. Otherwise: An unwed father has no absolute right to veto an adoption. You must take action to preserve your rights. Whether the mother is considering adoption or not, an unwed father should, as soon as possible and preferably before the birth:

Disclaimer: The information on the website is not intended to be a source of solicitation or legal advice, the results obtained in any legal matter discussed in any articles or examples are not typical. The information discussed on this website should not be construed as a certain result will occur in a similar situation, the reader should not rely on the information on this site as the sole source of information to make a legal-hiring decision. The reader should not consider the information on this website to be an invitation for an attorney-client relationship. Readers should not act or decline to act based on the content from this site, and should instead contact an attorney or other appropriate professional. Articles and information on this website may discuss law in multiple jurisdictions, as laws and regulations differ from one jurisdiction to another, it is important to discuss your particular situation with an attorney in the jurisdiction where your legal matter exist. Erik Smith does not represent that he has any particular expertise in any area of law. You may email Erik Smith, but to the extent allowed by law those communications shall not be treated as privileged unless Erik Smith represents you, as such do not send confidential information until you have established a formal attorney-client relationship with him. Where applicable on this website, you are informed that we are an interactive computer service that enables access by multiple users and should not be treated as the publisher or speaker of any information provided by another information content provider. Where applicable Copyright ©2022 Erik L Smith